BARRY SILVERSTEIN AND DENNIS J. MCGILLICUDDY, PETITIONERS V UNITED
STATES OF AMERICA
No. 87-1607
In the Supreme Court of the United States
October Term, 1987
On petition for a Writ of Certiorari to the United States Court of
Appeals for the Eleventh Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS
Question Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-2a) is reported
at 835 F.2d 1439 (Table).
JURISDICTION
The judgment of the court of appeals (Pet. App. 26a-27a) was
entered on December 17, 1987. A petition for rehearing was denied on
January 28, 1988 (Pet. App. 28a). The petition for a writ of
certiorari was filed on March 28, 1988. The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether, in the absence of any coercive government action against
petitioners, the court of appeals erred in declining to review the
denial of petitioners' motion to disqualify the United States Attorney
from participating in a grand jury investigation of matters that may
relate to petitioners' affairs.
STATEMENT
1. In May 1987, petitioners Silverstein and Mcgillicuddy received
subpoenas to testify before and deliver records to a federal grand
jury sitting in the Middle District of Florida. Petitioners moved the
district court to quash those subpoenas and to disqualify the United
States Attorney from participating in any grand jury investigation
involving petitioners. Petitioners based their motions on petitioner
McGillicuddy's contacts with the same United States Attorney in the
case of United States v. Italiano, No. 85-59-CR-T-(10) (M.D. Fla.
1987), rev'd, 837 F .2d 1480 (11th Cir. 1988), in which McGillicuddy
participated as an immunized witness. Petitioners argued that the
United States Attorney was not qualified to conduct the current
investigation because (1) he termed McGillicuddy's testimony
"inherently incredible" during the Italiano trial, and (2) he was
familiar with McGillicuddy's prior immunized testimony and might make
improper use of that testimony before the grand jury. Pet. App.
5a-9a.
The district court denied both motions. The court noted that
petitioners' motions were "at best premature," and that petitioners'
contentions could be renewed in a challenge to "an actual indictment"
of petitioners if there should be one (Pet. App. 21a). The district
court also declined to stay enforcement of the subpoenas. The court
later entered orders granting immunity to petitioners under 18 U.S.C.
6002 and compelling them to testify (Pet. App. 15a-16a). Petitioners
complied with the grand jury subpoenas, testified before the grand
jury, and thereby rendered moot their motion to quash the subpoenas
(id. at 2a). /1/
2. In a brief unpublished order, the court of appeals dismissed
petitioners' appeal from the denial of their motion to disqualify the
United States Attorney (Pet. App. 1a-2a). The court of appeals held
that petitioners' challenge did not present a justiciable Article III
case or controversy. But the court of appeals made it clear that its
decision was "without prejudice to (petitioners') right to petition
the district court for whatever relief the law may provide if the
United States Attorney treats (petitioners) in such a fashion as to
warrant the district court's intervention in the exercise of its
supervisory power" (id. at 2a).
ARGUMENT
The court of appeals' judgment is correct, and that court's
unpublished order does not conflict with the decision of any other
court of appeals. Thus, no further review is warranted.
1. Article III of the Constitution limits the "judicial Power" of
federal courts to "Cases and Controversies." That limitation is
designed to ensure that the courts issue judgments only in specific,
concrete controversies between interested parties. In the context of
grand jury proceedings and investigations, the types of justiciable
controversies are well settled. Once a grand jury has returned an
indictment, an aggrieved individual may move to dismiss the indictment
on a variety of grounds. See Wayte v. United States, 470 U.S. 598,
608 (1985). Prior to an indictment, a person may challenge a coercive
governmental action such as the issuance of a subpoena. See
Cobbledick v. United States, 309 U.S. 323 (1940). But in the absence
of coercive action, an individual has no right to compel a federal
court to exercise authority over an investigation being conducted by
the Executive Branch.
This principle has been clear since Laird v. Tatum, 408 U.S. 1
(1972). In Laird, the question was "whether the jurisdiction of a
federal court may be invoked by a complainant who alleged that the
exercise of his First Amendment rights is being chilled by the mere
existence, without more, of a governmental investigative and
data-gathering activity" (id. at 10). This Court held that a federal
court lacks such jurisdiction because the government's activities are
not "regulatory, proscriptive, or compulsory in nature" (id. at 11).
To permit review in the absence of any concrete harm or coercive
government action would make the "federal courts as virtually
continuing monitors of the wisdom and soundness of Executive action"
(id. at 15).
The principle of Laird has great force in the context of a grand
jury proceeding conducted by a United States Attorney. As the Court
noted United States v. Sells Engineering, Inc., 463 U.S. 418, 430
(1983) (footnotes omitted), a grand jury depends "largely on the
prosecutor's office to secure the evidence or witnesses it requires."
Thus, the United States Attorney, like the grand jury, "must be free
to pursue (his) investigations unhindered by external influence or
supervision." United States v. Dionisio, 410 U.S. 1, 17 (1973).
Of course, a person who is subject to some coercive governmental
action may challenge that action. Here, for example, petitioners
presented an Article III controversy to the district court when they
moved to quash the grand jury subpoenas. And they could have obtained
appellate review of the district court's denial of their motion to
quash if they had refused to comply with the subpoenas and had been
held in contempt. See United States v. Ryan, 402 U.S. 530, 533
(1971). The claims petitioners assert before this Court, however,
present no case or controversy arising from the grand jury
investigation being led by the United States Attorney.
If petitioners are served with new subpoenas, they may move to
quash those subpoenas. Or if they are indicted, they may move to
dismiss the indictment. But they may not obtain an order designating
who may lead a grand jury investigation that may, in some unspecified
way, relate to their affairs. Any concern or resentment that results
from being associated with a criminal investigation is simply "'part
of the social burden of living under government.'" Petroleum
Exploration, Inc. v. Public Service Comm'n, 304 U.S. 209, 222 (1938)
(citation and footnote omitted). See also United States v.
Richardson, 418 U.S. 166, 173 (1974) (citation omitted) (federal
courts do not have Article III authority to address "'generalized
grievances about the conduct of government'"). Cf. FTC v. Standard
Oil Co., 449 U.S. 232 (1980).
There is no authority in the courts of appeals supporting
petitioners' argument that their motion to disqualify the United
States Attorney presented a case or controversy. The only reported
decision cited by petitioners that involves a motion to disqualify a
prosecutor conducting a grand jury inquiry is General Motors Corp. v.
United States (In re April 1977 Grand Jury Subpoenas), 584 F.2d 1366
(6th Cir. 1978) (en banc), cert. denied, 440 U.S. 934 (1979). In that
case, the court of appeals held that it had no jurisdiction to review
an order denying a motion to disqualify a government lawyer from
conducting a grand jury investigation. In dismissing the appeal for
want of jurisdiction, the court did not discuss whether General
Motors' motion to disqualify presented an Article III controversy.
Accordingly, there is no conflict between the Sixth Circuit's decision
in General Motors and the decision in this case.
2. Even if a motion to disqualify a United States Attorney from
leading a grand jury investigation were justiciable in some cases,
petitioners' motion is not. Petitioners do not claim that the United
States Attorney has acted improperly in the current investigation;
rather, they seek his removal as a "prophylactic" measure to "avert
future harm" (Pet. 6). But petitioners have not shown that the "harm"
they seek to avoid is anything other than purely speculative. They
currently are under no compulsion to appear before the grand jury or
to submit any evidence. And there is no reason to believe that
petitioners are about to be indicted. On the contrary, petitioners
testified under grants of immunity, and they have not been identified
as targets of the grand jury's investigation. Thus, petitioners have
clearly not made the threshold Article III "showing of any real or
immediate threat that (they) will be wronged." City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983). See generally O'Shea v. Littleton,
414 U.S. 488, 494 (1974) (citations omitted) ("Abstract injury is not
enough. It must be alleged that the plaintiff 'has sustained or is
immediately in danger of sustaining some direct injury' as the result
of the challenged statute or official conduct. * * * The injury or
threat of injury must be both 'real and immediate,' not 'conjectural'
or 'hypothetical.'").
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARELS FRIED
Solicitor General
EDWARD S.G. DENNIS, JR.
Acting Assistant Attorney General
SARA CRISCITELLI
Attorney
JUNE 1988
/1/ Petitioners no longer challenge the district court's denial of
their motion to quash the subpoenas (see Pet. 4 n.5).